Exposing Someone To Aids Is Now A Crime

In a spate of unprecedented cases across the country, AIDS victims are being hauled to criminal court for actions that, without the AIDS factor, often would be legal.

At Fort Huachuca, Ariz., and Fort Sam Houston, Texas, two Army privates face courts-martial for aggravated assault. The charge: They did not tell their sex partners that they had tested positive for the AIDS virus.

In Los Angeles, a young drifter has been accused of attempted murder. The charge: He knew that his blood was tainted with the deadly acquired immune deficiency syndrome virus but sold it to a blood bank anyway.

In Minneapolis, a prison inmate who tested positive for the AIDS virus was convicted of assault. The charge: He attacked two guards with a ''deadly and dangerous weapon'' -- his mouth and teeth.

In Columbia, S.C., a drifter from Florida who is a known AIDS carrier is accused of attempted murder through rape. The case is set for trial on Aug. 31.

The charge: Prosecutors say Terry Lee Phillips went to a hospital emergency room for treatment of a swollen hand, left and raped a woman on May 9. They say Phillips told people he wanted to give someone AIDS.

Legal experts say they expect to see more such cases in coming months even as an intense debate rages among prosecutors, civil-liberties lawyers and gay activists over whether or not the cases belong in criminal court at all.

''You're prosecuting someone who is in pretty bad shape and has enough problems in life. You seem to be picking on the disadvantaged,'' said Charles Nesson, a Harvard professor who moderated a Public Broadcasting Service debate on the highly publicized case of Fabian Bridges, a Houston drifter who continued to sell sex even though he knew he had AIDS. Bridges died in October 1985.

But prosecutors say they have no choice, because releasing or ignoring those who willfully spread AIDS puts the public at risk.

''You can't allow people who carry deadly diseases to disregard the safety of others,'' said Jack Yelverton, executive director of the National District Attorneys Association.

Yelverton and prosecutors acknowledge, however, that many AIDS-related prosecutions may be skating on thin ice, because few states -- apparently only Idaho and Florida -- have passed criminal statutes that specifically apply to such cases.

Florida's law makes it illegal for a known AIDS carrier to have sex with another person unless he or she tells the sexual partner of the disease.

According to the Intergovernmental Health Policy Project, a Washington organization that tracks AIDS-related legislation around the United States, legislators in 13 states are contemplating a variety of new criminal laws directed at AIDS carriers who engage in activities that can pass on the disease.

But until these laws are enacted, said Yale Professor Harlan L. Dalton, author of a forthcoming book called AIDS and the Law, prosecutors may be ''stretching the criminal law out of shape'' by trying to build criminal cases around existing statutes passed by lawmakers who never imagined that blood or bodily fluids might someday be considered instruments of crime.

In Los Angeles, District Attorney Ira Reiner said prosecution lawyers found it ''necessary to go through the statutes and find a statute or several statutes . . . which would accurately encompass the conduct'' of plasma donor Edward Markowski, who reportedly told investigators that although he knew AIDS was deadly, he ''didn't give a damn.''

It was only after that search through the statutes, Reiner said in a recent interview, that prosecutors were convinced that attempted murder was the correct charge.

''What we need in California and elsewhere are laws that specifically address this problem,'' said Reiner. ''It should be a crime, to put it as simply as possible, to knowingly sell and donate your blood when you have AIDS.''

Even though the Markowski case will be difficult to prosecute without such a law, Reiner said, ''the choice if we didn't prosecute him was to release him.''

Markowski, 28, is a transient, Reiner said. ''He would have gone wherever he goes and would have engaged in the same conduct.''

Markowski, who is being held on $1 million bail, allegedly sold his plasma 24 times.

The blood-screening guidelines followed by all blood banks should ensure that his plasma never reaches the public, a Food and Drug Administration spokeswoman said.

But his case is being watched closely by prosecutors and legal experts as a test of just how far AIDS-related prosecutions are able to go.

District Attorney Reiner compares the case ''to the person who put the poison in the Tylenol and was never caught.'' Others, though, aren't so sure. ''I think that's a pretty weak analogy,'' said Gerald Uelman, law school dean at Santa Clara University and head of a professors' group advising the National Association of Criminal Defense Lawyers.